Nippon Steel Corp. v. United States

SLIP OP. 06-97
UNITED STATES COURT OF INTERNATIONAL TRADE
:
NIPPON STEEL CORPORATION, :
:
Plaintiff, :
:
v. :
: Before: Jane A. Restani, Chief Judge
:
UNITED STATES, :
:
Defendant, : Consol. Court No. 99-08-00466
:
and :
:
U.S. STEEL GROUP, A UNIT OF USX :
CORPORATION, ISPAT INLAND INC., :
GALLATIN STEEL, IPSCO STEEL, INC., :
STEEL DYNAMICS, INC., and :
WEIRTON STEEL CORPORATION, :
:
Defendant-Intervenors. :
:
MEMORANDUM OPINION AND ORDER
[Defendant’s partial consent motion for leave to reliquidate entries of subject merchandise
granted.]
Dated: June 27, 2006
Gibson, Dunn & Crutcher, LLP (Daniel J. Plaine and Gracia M. Berg) for the plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice (Kyle E. Chadwick), for
the defendant.
Skadden, Arps, Slate, Meagher & Flom, LLP (John J. Mangan, and Robert E. Lighthizer)
for defendant-intervenors U.S. Steel Group, a unit of USX Corporation and Ispat Inland Inc.
Schagrin Associates (Roger B. Schagrin) for the defendant-intervenors Gallatin Steel,
IPSCO Steel Inc., Steel Dynamics, Inc., and Weirton Steel Corporation.
Consol. Court No. 99-08-00466 Page 2
Restani, Chief Judge: This matter is before the court on defendant’s motion to reliquidate
entries of merchandise that were the subject of antidumping duty litigation and which were
erroneously liquidated.
FACTS
Liquidation of entries of hot-rolled steel subject to the antidumping duty order and
produced by Nippon Steel Corporation was suspended by the court’s injunction of October 7,
1999. See Order Granting Mot. Prelim. Inj., Oct. 7, 1999. The injunction was requested by
Nippon Steel to preserve its interests and those of importers of subject merchandise produced by
Nippon Steel during the pendency of this litigation.
Notwithstanding this injunction, on July 29, 2005, the United States Department of
Commerce (“Commerce”) issued liquidation instructions to the United States Bureau of Customs
and Border Protection (“Customs”) instructing Customs to liquidate twenty-eight entries of
subject merchandise produced by Nippon Steel Corporation. Def.’s Mot. at Attach. 2.
Specifically, Customs was instructed to “assess antidumping duties . . . at the cash deposit rate in
effect on the date of entry.” Def.’s Mot. at Attach. 2. On the date of entry, the twenty-eight
entries at issue were subject to a cash deposit rate of 18.37%. Between September 9, 2005, and
December 23, 2005, the twenty-eight entries were liquidated and assessed antidumping duties at
this rate by the Ports of Buffalo, Chicago, Nashville, New Orleans, San Francisco, Savannah, and
St. Louis.
On February 22, 2006, the court entered a final judgment in this case, which established
an antidumping duty rate of 21.12% for all entries that occurred between February 19, 1999, and
November 21, 2002. Nippon Steel Corp. v. United States, Slip Op. 06-23, 2006 WL 416369Consol. Court No. 99-08-00466 Page 3
(CIT Feb. 22, 2006); Final Results of Redetermination Pursuant to Court Remand,
A-588-846, POI 97-98 (Dep’t Commerce Nov. 28, 2003), available at:
http://ia.ita.doc.gov/remands/99-08-00466.pdf. For entries that occurred on or after November
22, 2002, the liquidation rate was set at 19.95%. At some point after the court’s issuance of its
final judgment, Commerce apparently recognized that it had violated the court’s injunction with
respect to the twenty-eight entries. Although defendant’s motion provides no information on
how or when Commerce recognized its error, on April 12, 2006, Commerce apparently issued a
correction to its instructions for liquidation of entries of the subject merchandise produced by
Nippon Steel Corporation. Def.’s Mot. at Attach. 3.
DISCUSSION
All parties agree that erroneous liquidations occurred here in violation of an
outstanding court injunction. The court has previously found liquidations in violation of
outstanding injunctions to be void. See Allegheny Bradford Corp. v. United States, 342 F. Supp.
2d 1162, 1169 (CIT 2004); AK Steel Corp. v. United States, 281 F. Supp. 2d 1318, 1321-23 (CIT
2003); LG Elecs., U.S.A., Inc. v. United States, 21 C.I.T. 1421, 1428, 991 F. Supp. 668, 675
(1997).1 Plaintiff opposes defendant’s request to recognize the erroneous liquidations as void
1
Shinyei Corp. of America v. United States, 355 F.3d 1297 (CIT 2004), recognized the
jurisdiction of the Court under 28 U.S.C. § 1581(i) (2000) to order correction of liquidations
following antidumping duty litigation, if the erroneous liquidation resulted from improper
instructions from Commerce, as in this case. See Shinyei, 255 F.3d at 1305. Shinyei, however,
was a post-litigation APA action brought by parties injured by government action, not an action
by the government to correct its own errors. Further, there is no discussion of any permanent
injunction in Shinyei, and any preliminary injunction would have dissolved. In this case, the
“preliminary” injunction was still in place. The court’s final judgment issued after the putative
liquidations occurred.
Consol. Court No. 99-08-00466 Page 4
because it avers defendant should not benefit from its own wrongdoing. Plaintiff, however,
offers no evidence that in regard to the liquidations at issue defendant had any improper purpose
or was even negligent, and does not contest that defendant acted promptly to correct its error.
Certainly, private party defendant-intervenors did nothing warranting loss of the beneficial
results of litigation. The court sees no reason to deny defendant and defendant-intervenors the
benefit of the court’s equitable power to restore the order required by the court’s injunction. All
things being otherwise equal, a void liquidation is void for all purposes.
CONCLUSION
Upon consideration of the defendant’s motion to reliquidate certain entries of
subject merchandise, and plaintiff’s response thereto, it is hereby:
ORDERED that the defendant’s motion is granted; and further, permanently
ORDERED that the entries shall be liquidated in accordance with the final court decision
as provided in 19 U.S.C. § 1516a(e) (2000), notwithstanding the provisions of 19 U.S.C.
§ 1504(d) (2000 & West Supp. 2006), as previously ordered; and
ORDERED that the Bureau of Customs and Border Protection shall liquidate or
reliquidate the inadvertently “liquidated” entries in accordance with the court’s final judgment
dated February 22, 2006.
/s/ Jane A. Restani
Jane A. Restani
Chief Judge
Dated this 27th day of June, 2006.
New York, New York.